5 Things to Know About Foreign Marriages and Divorces
Arizona recognizes foreign marriages and divorces that occurred outside the United States so long as it was legal in that jurisdiction, and it does not violate Arizona law. If it didn’t happen in Arizona, the law defines it as having happened in a “foreign jurisdiction”, whether it happened in another state or another country.
Here are 5 Things You Should Know About Foreign Marriages and Divorces
1. If you were married in a foreign country or a different state, Arizona will legally recognize it; provided it is not a void marriage.
Arizona recognizes marriages contracted in another state so long as they are either legal in the place where the couple was married or the marriage would have been legal had it taken place in Arizona. For example, under Arizona law, you cannot create a common-law marriage here, but if you enter into a common-law marriage where it is legal to do so, Arizona will recognize it. The only exception is Arizona will not recognize marriages that are void under Arizona law, such as marriages between relatives (i.e., parents can’t marry their children, brothers can’t marry their sisters, and first cousins can’t marry). Gay marriage remains on the books as a void marriage here, but the law, of course, has been deemed unconstitutional by the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 576 U.S. 644 (2015).
2. If you were married in a foreign country (or a different state), Arizona can divorce you.
We hear this question more than others, “If I was married in another country (Mexico, India, Canada, etc.), can I get divorced in Arizona?” Similarly, people ask if they need to return to the state where they were married to get divorced or if Arizona can divorce them. No return trips are necessary. The answer is you can get divorced in Arizona so long as Arizona’s courts have jurisdiction to divorce you. To have jurisdiction, the requirement is you (or your spouse) must have lived here for at least 90 days and you must have the intent to remain living in Arizona. See A.R.S. § 25-312(A)(1).
3. Arizona can divorce you if your spouse lives in another country (or another state), but we’ll need to make sure Arizona has personal jurisdiction over your spouse.
When your spouse doesn’t live in Arizona, Arizona can still terminate your marriage. But for Arizona to divide the marital property, award child support, and determine spousal maintenance, it must have personal jurisdiction over your spouse. That can be a complex, legal issue, particularly if your spouse has never visited or lived in Arizona. Personal jurisdiction is complex, so if it’s a factor in your case, you should discuss it with an attorney. In its simplest terms, personal jurisdiction requires that your spouse have sufficient “minimum contacts” with Arizona to justify Arizona’s exercise of jurisdiction over your spouse. It can be difficult to determine, but the issue also comes with two very easy shortcuts:
- If your spouse gets served while visiting Arizona, Arizona can exercise personal jurisdiction, or;
- If your spouse files an Answer without specially appearing or asking the case to be dismissed for lack of personal jurisdiction, your spouse waives the issue
4. If you are divorced in a foreign country, Arizona will likely recognize it under a principle called “comity”. If you are divorced in another state, Arizona will recognize it under the Full Faith and Credit Clause.
If you are divorced outside of Arizona, the divorce is valid in Arizona. Divorces in other states must be recognized under Article IV, Section 1 of the U.S. Constitution, a.k.a., the Full Faith and Credit Clause. It requires each state to recognize the actions taken by judicial proceedings conducted in other states. For divorces in foreign countries, that provision does not apply, but Arizona will recognize the divorce out of principle called “comity.” Under this principle, Arizona recognizes the actions of foreign judicial bodies as showing respect to those countries. The only exception to comity is that each party must have had a chance to respond and be heard on the issues related to the divorce.
5. To determine custody, Arizona must be the home state under the UCCJEA and the United States must be where the children habitually reside under the Hague Convention.
But for the Court to have jurisdiction over the children to decide custody, Arizona must be the home state. See A.R.S. § 25-1002(7) and A.R.S. § 25-1031. Generally, the children must have been here for at least six months, and no other state has issued a custody order. See A.R.S. § 25-1032. Additionally, when the children have lived in more than one country, the United States must be the place where the children “habitually reside.”
BONUS: The Hague Convention controls how you can serve divorce papers in a foreign country.
You can divorce a spouse who lives in another country as long as Arizona meets the above jurisdictional requirements. As for serving your spouse, the service needs to abide by the Hague Convention. Each country under that convention can determine how service from a foreign country can take place in their country. For example, in Mexico, that generally means translating the documents into Spanish and providing them to the Mexican Central Authority and arranging service from there.
Related Pages and Posts:
International Marriage – State 48 Law Firm
